Commonwealth v. Andrews

SPAETH, Judge,

dissenting:

As the majority correctly notes, the right to the particular counsel of one’s choice is not absolute; instead, it is necessary to balance the defendant’s desire for a particular counsel against the Commonwealth’s interest in the efficient administration of justice. In my opinion, here the balance is clearly in appellant’s favor. The lower court refused appellant’s request for a very brief delay, certainly no more than half an hour, which would have allowed a telephone call to counsel to confirm, or refute, appellant’s claim that he was represented. This was an abuse of discretion. Furthermore, the record establishes that appellant never waived his right to counsel but was forced to trial without counsel. For both of these reasons the judgment of sentence should be reversed and the case remanded for a new trial. 1

*134 1

In stating the factual history of the case, the majority gives the impression that for “a full seventeen months,” at 860, appellant did nothing about getting private counsel, and then “appear[ed] on the day of trial” without counsel, id., when he not only “did not refute” but agreed with testimony by the assistant court administrator that in fact he had not retained counsel, at 858. The record shows that the case is quite otherwise.

In November 1976 appellant failed to appear for trial. Instead he jumped bail and was a fugitive for almost a year. In October 1977 he was rearrested and held in jail in Lancaster County until his trial on November 14, 1977. From his arraignment on October 7, 1977, until his trial appellant consistently maintained that he was represented by attorney Mitchell Lipschutz of Philadelphia. It is true that on the day of trial that was controverted by the testimony of the assistant court administrator, who said that Lipschutz had told him that although he had received a letter from appellant, no retention agreement had been completed. It is also true that when asked about this testimony, appellant replied that “[w]hat he says is right.” However, that is not all that appellant said. The majority opinion omits the fact that appellant also said that after the assistant court administrator’s call, Lipschutz had told him on Thursday that he would not be able to telephone the court Friday because that would be closed (Friday was Veterans’ Day) and that if someone from the court would telephone him on Monday, he would confirm that he did represent appellant but could not be there because he was engaged. This appears from the following portion of the colloquy, which the majority omits (see at 861-862):

DEFENDANT ANDREWS:

I spoke to a person from the prison, talked to my attorney, too, and he said he definitely represented me, and he cannot get up here.

THE COURT:

*135 There has been no appearance entered on your behalf, Mr. Andrews, and the Court has received no communication.

Has the District Attorney received any?

MR. KENNEFF:

I think we can put on record, from Mr. Brighton, that he did in fact have a communication with Mr. Lipschitz [sic-Lipschutz] and Mr. Lipschitz says he does not represent Mr. Andrews.

THE COURT:

Is Mr. Lipschitz the attorney whom you-

DEFENDANT ANDREWS:

Yes, sir. After a couple of hours later we called from the prison, he said he definitely represents me, he cannot get up here today, he is in court. He said a simple phone call would verify it. He said he couldn’t get in touch with the Court Friday because it was closed.

THE COURT:

Send for Mr. Brighton, I will continue this. [The court then resumed the colloquy.] (Emphasis added.)

In deciding whether the lower court abused its discretion in refusing to take the little time required to have a telephone call made to Lipschutz, and in forcing appellant to go to trial without counsel, the majority, at 860, and the lower court, slip op. at 5, both hold against appellant the fact that he jumped bail and became a fugitive. It appears to me that the proper consideration in balancing appellant’s interest in being represented by the counsel of his choice and the Commonwealth’s interest in the efficient administration of justice should be limited to the question of what prejudice to the Commonwealth would result if appellant’s request that a telephone call be made were granted. Without question, appellant did inexcusably delay his trial when he jumped bail and became a fugitive. However, requiring a defendant to go to trial without counsel is an inappropriate sanction for such conduct. Other sanctions exist. See e. g., 18 Pa.C.S.A. § 5124 (a person set at liberty by court order upon condition that he will subsequently appear at specified time *136 or place commits criminal offense if without lawful excuse he fails to appear).

Instead of emphasizing the length of time that appellant was a fugitive, we should consider the diligence of his efforts to obtain counsel once he was rearrested and the reasonableness of his belief that counsel of his choice would represent him. As part of this consideration we should keep in mind that appellant was incarcerated from the time of his rearrest until the time of trial. An accused who is incarcerated pending trial may encounter substantial difficulties in retaining private counsel, for not only will he be unable to go to counsel’s office, but his ability to negotiate a retention agreement may be further compromised by the loss of income from regular employment occasioned by his incarceration. These difficulties will be compounded if the accused is incarcerated in a county distant from his home. In the present case, appellant’s home is in Philadelphia, some distance from Lancaster County. Nevertheless, despite the consequent difficulties, during the period of forty-three days from his rearrest to trial, appellant had communicated with Attorney Lipschutz. When asked by the court at a post-arraignment hearing on November 10, 1977, if he had paid Lipschutz, his response was “My family is.” See lower court slip op. at 3. This is a further indication that appellant could reasonably have thought that he had done all he had to do, and all he could do, to assure representation at trial by the counsel of his choice.

In deciding whether the lower court has abused its discretion by denying a defendant counsel of his choice, the appellate courts have considered three factors to be of particular importance. First is the past opportunity of the defendant to obtain counsel of his choice and the use he has made of that opportunity. Second is the amount of additional time being asked for and the prejudice, if any, to the Commonwealth in granting the defendant that additional time. And third is the nature of the alternative to the defendant’s representation by his chosen counsel.

*137 In Commonwealth v. Novak, 395 Pa. 199 , 150 A.2d 102 , cert. denied, 361 U.S. 882 , 80 S.Ct. 152 , 4 L.Ed.2d 118 (1959), the defendant had had two years after first indicating dissatisfaction with his retained counsel to obtain other representation. When, on the day set for trial, he asked for the opportunity to obtain other counsel, there was no indication that he had anyone else in mind. In addition, and important, his previously retained counsel had conducted a vigorous defense up to that time and continued to do so after their motions to withdraw were denied.

In Commonwealth v. Simpson, 222 Pa.Super. 296 , 294 A.2d 805 (1972), the defendant had had eight months in which to obtain private counsel, including a one month continuance after the case was first called for trial. There was no indication that he had been hampered by incarceration or in any other way from obtaining private counsel sooner. At the time his request for a further continuance was denied, he still could not say how much more time he would need to complete his arrangements with his chosen counsel. And finally, he had been represented all along by a public defender who was familiar with the case, which lacked “complex issues,” id., 222 Pa.Super. at 299 , 294 A.2d at 806 .

In Commonwealth v. Minifield, 225 Pa.Super. 149 , 310 A.2d 366 (1973), the defendant waited three weeks after receiving notice of a workers’ compensation award before requesting a continuance on the day of trial. The continuance would have led to further delay because some of the witnesses would have become unavailable. And as in Simpson and Novak , the defendant was already being represented by counsel thoroughly familiar with the case. Further, it appeared from the colloquy between the defendant and the calendar judge who denied the continuance that the defendant may have been motivated to seek a delay more by the desire to have his case heard before a different judge than by the desire to have private counsel. Id., 225 Pa.Super. at 159 , 310 A.2d at 371 .

In Commonwealth v. Robinson, 468 Pa. 575 , 364 A.2d 665 (1976), the defendant had been represented by private coun *138 sel at his preliminary hearing. Afterwards he had no further direct contact with that counsel and at the time his case was scheduled for presentation to the grand jury, several months later, counsel had still not entered an appearance. The court then on its own motion appointed an experienced trial lawyer to represent the defendant because he had refused to cooperate with the public defender. A month later the defendant’s chosen counsel entered an appearance, but when the case was called for trial two months after that, counsel wrote the court saying he had a conflict and asking for a continuance. The case was continued for two more months. At that time, when counsel still did not appear for trial, the court ordered the case to go to trial the following day with the back-up counsel appointed six months earlier. There was no indication of when, if ever, the defendant’s chosen counsel would appear, and back-up counsel was fully prepared for trial.

In all of these cases it was held that the lower court had not abused its discretion in requiring the defendant to proceed to trial without counsel of his choice. These cases may be contrasted with cases in which an abuse of discretion was found.

In Commonwealth v. Atkins, 233 Pa.Super. 202 , 336 A.2d 368 (1975), the defendant had been represented by counsel of her choice at her preliminary hearing. At a subsequent suppression hearing she was represented by another member of the same firm. On the day of trial she asked for a continuance to obtain different counsel. Her explanation was that she had believed the appearance of her chosen counsel’s associate at the suppression hearing was only because her counsel had a broken leg and was unable to be in court, but that by the time of trial she had learned that her chosen counsel had not agreed to represent her personally. At most he had agreed to have his firm provide representation. She said that the associate who had appeared at the suppression hearing and who was in court the day of trial was not acceptable to her. The court denied her request for a continuance and forced her to go to trial, giving her the *139 choice between the counsel she did not want and representing herself. There was nothing to indicate that she was deliberately seeking delay or would not be able to obtain acceptable counsel expeditiously, nor was there any indication that the Commonwealth would have been prejudiced by a short continuance. In these circumstances we held that the lower court had abused its discretion in forcing the defendant to go to trial with counsel unacceptable to her. We noted that in distinction from Simpson , there had been no prior continuance, and that in distinction from “the Novak-Minifield line of cases,” the defendant had reasonably believed that counsel of her choice would represent her at trial. “The granting of a short continuance,” we said, would have satisfied both the constitutional right of the appellant to be represented by an attorney of his own choosing, and the interest of the public in the prompt and efficient administration of justice.” Id., 238 Pa.Super. at 211, 336 A.2d at 373 .

In Commonwealth v. Ross, 465 Pa. 421 , 350 A.2d 836 (1976), the defendant was brought to trial eleven weeks after his arrest. For all but three days of that time he had been incarcerated. While incarcerated he had filed a petition for appointment of counsel, which had never been acted on. During his three days of liberty before trial be obtained counsel, but quite understandably, counsel declined to enter his appearance unless the lower court would grant a continuance so that he could prepare for trial. The lower court refused to grant a continuance and ordered that the trial proceed with the defendant being represented by a public defender who was both inexperienced and unfamiliar with the case. There was no indication that the Commonwealth would have been prejudiced by a continuance. During the trial neither the defendant nor the public defender conducted any cross-examination, and no evidence was presented on the defendant’s behalf. Again an abuse of discretion was found, the Court noting that the trial was less than three months after arrest, and that while in jail the defendant had sought private counsel, and had retained counsel upon his *140 release just before trial. Again Simpson and Minifield were discussed and distinguished.

It is clear to me that the present case is much closer to Atkins and Ross than to Novak, Simpson, Minifield and Robinson . The time between appellant’s rearrest and trial was even less than the eleven weeks in Ross . In spite of the difficulties of being incarcerated at a distance from his home, appellant thought he had made arrangements to be represented by counsel of his choice, as in Atkins . There was no indication that the Commonwealth would be prejudiced-how could it have been prejudiced by a half hour delay for a telephone call?-or that appellant was deliberately trying to delay his trial. Contrast Minifield . There was no indication that appellant’s chosen counsel would not be available at a specific time in the near future. Contrast Robinson . And finally, there was no alternative counsel available and already familiar with the case at the time of trial. Contrast Novak, Simpson, Minifield and Robinson .

I believe that it was an abuse of discretion for the lower court to refuse appellant’s request that Attorney Lipschutz be telephoned regardless of what response Lipschutz might have made to the call. However, the fact that Lipschutz has consistently maintained in post-trial proceedings that he told the assistant court administrator that he did represent appellant, and has controverted the administrator’s account of their conversation in other ways as well, see majority opinion at 858 n. 1, only emphasizes the importance of giving criminal defendants the benefit of the doubt when their right to counsel is at issue.

2

The colloquy reprinted in the majority opinion, at 861—862, occurred when appellant was still pleading with the court to grant him a continuance so that his chosen counsel could be present; it preceded the testimony of the assistant court administrator concerning his conversation with Attorney Lipschutz. 2 The issue is not whether before his request for a *141 continuance was denied appellant understood the importance of having counsel but rather whether the record affirmatively shows that after the court had denied his request for a continuance, he then voluntarily and intelligently waived his right to counsel.

No court should lightly assume that an accused has waived his right to counsel. Commonwealth v. Hauser, 265 Pa.Super. 135 , 401 A.2d 837 (1979). Waiver must be of record, Commonwealth v. Tyler, 468 Pa. 193 , 360 A.2d 617 (1976); Commonwealth v. Barnette, 445 Pa. 288 , 285 A.2d 141 (1971); Commonwealth ex rel. Gordon v. Myers, 424 Pa. 352 , 227 A.2d 640 (1967), and may not be found from the appearance of an accused without counsel or from the accused’s failure to request counsel. Commonwealth v. Grant, 229 Pa.Super. 419 , 323 A.2d 354 (1974). Here, as the colloquy quoted in the majority opinion shows, appellant clearly did not wish to proceed to trial without legal assistance.

The majority says, however, that “appellant was given the choice to accept or reject court-appointed counsel; his intentional rejection of counsel constituted a waiver.” At 862. The choice that was offered appellant, between representing himself and having the assistance of a public defender he had never met before and who had had no opportunity to prepare the case, cannot serve as the basis for finding waiver. Indeed, not even the lower court regarded its order-that a public defender should “sit” with appellant during trial and be available “for such consultation or participation” as appellant wished-as constituting an “appointment” of the defender as appellant’s counsel-and given the defender’s lack of opportunity to prepare, the order could not have been so regarded. 3 As the Supreme Court observed in Ross , “The refusal to give [counsel] any time denied *142 appellant his right to counsel and could only give rise to an ineffective assistance of trial counsel claim in a subsequent proceeding.” 465 Pa. at 427 , 350 A.2d at 839 . Thus, the majority’s description of the public defender as “court-appointed counsel” is unwarranted; and the record cannot possibly show that appellant “rejected]” something he was never offered. Finally, also as in Ross , the trial itself confirmed that appellant did not wish, and did not feel able, to represent himself. Appellant did not make an opening statement, he conducted no cross-examination, offered no witnesses, and made no closing argument. It does not seem to me that justice was served.

The judgment of sentence should be reversed and the case remanded for new trial.

. Because I believe that appellant was improperly denied the assistance of counsel and must therefore receive a new trial, I do not reach the other issues discussed by the majority opinion, at 862-864.

. The order of presentation in the majority opinion is reversed.

. The majority cites Commonwealth v. Africa 466 Pa. 603, 621 , 353 A.2d 855, 864 (1976), for the proposition that when a defendant seeks to represent himself the court should appoint standby counsel. That case is inapposite for two reasons. First, it is predicated on there having been a prior valid waiver of counsel. Second, it assumes that the standby counsel will have had an opportunity to become sufficiently familiar with the case to be able to be effective.